same in the county, or whose judgment or decree was not duly docketed in the county clerk's office, at the time of the delivery of a copy of the notice of said sale to the clerk of the county; and the executor, administrator or assignee of such a person. 4. Every other person, claiming under a statutory lien or incumbrance, created subsequent to the mortgage, attaching to the title or interest of any person, designated in either of the foregoing subdivisions of this section. 5. The wife or widow of the mortgagor, or of a subsequent grantee, upon whom notice of the sale was served as prescribed in this title, where the lien of the mortgage was superior to her contingent or vested right of dower, or her estate in dower. From Id., § 8, as amended by ch. 277 of 1842, and by ch. 346 of 1844, § 4 (4 Edm. 534, 668). Am'd by ch. 209 of 1889. § 2396. Affidavit of sale, and of posting, serving, etc., notices. An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; and the name of the purchaser of each distinct parcel may be made by the person, who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court-house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels. From Id., § 9 and § 10, as amended by ch. 346 of 1844, and ch. 308 of 1857. § 2397. When one affidavit suffices; printed notice to be annexed. The matters required to be contained in any or all of the affidavits specified in the last section, may be contained in one affidavit, where the same person deposes with respect to them. A printed copy of the notice of sale must be annexed to each affidavit; and a printed copy of each notice of postponement must be annexed to the affidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affidavits, where they all refer to it, and are anexed to each other, and filed and recorded together. From part of § 9; 2 R. S. 547. Am'd by ch. 399 of 1882. § 2398. Filing and recording affidavits. The afidavits, specified in the last two sections, may be filed in the office for recording deeds and mortgages, in the county where the sale took place. They must be recorded at length by the officer with whom they are filed, in the proper book for recording deeds. The original affidavits, so filed, the record thereof, and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more counties, a copy of the SUR affidavits, certified by the officer with whom the originals are filed, may be filed and recorded in each other county, wherein any of the property is situated. Thereupon the copy and the record thereof have the like effect, with respect to the property in that county, as if the originals were duly filed and recorded therein. From Id., § 11 and part of § 12. Am'd by ch. 679 of 1904. In effect Sept. 1, 1904. § 2399. Note upon record of mortgage. A clerk or a register, who records any affidavits, or a certified copy thereof, filed with him, must make a note, upon the margin of the record of the mortgage, in his office, referring to the book and page, or the copy thereof, where the affidavits are recorded. From Id., § 13. § 2400. Deed not necessary. The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title, in like manner, upon payment of the purchase-money, and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay the purchase-money, until the affidavits, specified in that section, with respect to the property purchased by him, are filed, or delivered or tendered to him for filing. From Id., § 14. See § 2396. § 2401. Costs allowed. The following costs, in addition to the expenses specified in the next section, are allowed, in proceedings taken as prescribed in this title: 1. For drawing a notice of sale, a notice of the postponement of a sale, or an affidavit, made as prescribed in this title, for each folio, twenty-five cents; for making each necessary copy thereof, for each folio, thirteen cents. 2. For serving each copy of the notice of sale, required or expressly permitted to be served by this title, and for affixing each copy thereof, required to be affixed upon the court-house, as prescribed in this title, one dollar. 3. For superintending the sale, and attending to the execution of the necessary papers, ten dollars. From 2 R. S. 652, Part 3, ch. 10, tit. 5, § 4, subs. 1 and 2 and part of sub. 3 (2 Edm. 672), as amended by ch. 346 of 1844, § 3 (4 Edm. 668). § 2402. Expenses allowed. The sums, actually paid for the following services, not exceeding the fees allowed by law for those services, are allowed in proceedings taken as prescribed in this title: 1. For publishing the notice of sale, and the notice or notices of. postponement, if any, for a period not exceeding twenty-four weeks. 2. For the services specified in section 2390 of this act. 3. For recording the affidavits; and also, where the property sold is situated in two or more counties, for making and recording the necessary certified copies thereof. 4. For necessary postage, and searches. From Id. § 2403. Taxation thereof. The costs and expenses must be taxed, upon notice, by the clerk of the county where the sale took place, upon the request and at the ex TITLE VII. Proceedings for the disposition of the real property of an infant, lunatic, idiot, or habitual drunkard. SEC. 2345. Action to compel conveyance. 2346. Who may maintain action. 2347. Judgment; effect thereon. 2348. Application to dispose of real property; in what cases, 2349. Id.; by whom. 2350. Contents of petition. 2351. Bond of committee of lunatic, etc. 2352. Id.; of guardian of infant 2353. Bond; how prosecuted. 2354. Reference to inquire into the application. 2355. Final order. 2356. Report of sale, etc. 2357. Certain sales, etc., prohibited. 2358. Effect of conveyance, etc. 2359. Proceeds of sale deemed real property. 2360. Infant deemed a ward of court. 2364. Debts of infant, etc., to be paid equally. § 2345. Action to compel conveyance. In either of the following cases, an action may be maintained against an infant, or a person incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, to, procure a judgment, directing a conveyance of real property, or of an interest in real property. 1. Where the infant or incompetent person is seized or possessed of the real property, or interest in real property, by way of mortgage, or only in trust for another. 2. Where a valid contract for the sale or conveyance of the real property, or interest in real property, has been made; but a conveyance thereof cannot be made, by reason of the infancy or incompetency of the person in whom the title is vested. From 2 R. S. 55, Part 2, ch. 5, tit. 2, §§ 20, 22 (2 Edm. 56); ch. 446 of 1874, tit. 2, §§ 9, 23-26 (9 Edm. 931, 933), as amended by ch. 574 of 1875, §§ 7 and 8, relating to a lunatic, etc., and 2 R. S. 194, Part 3, ch. 1, tit. 2, §§ 167, 169 (2 Edm. 202). See rules 55, 56, 57, 58 (Sup. Ct.). § 2346. Who may maintain action. An action may be maintained, in a case specified in the last section, by a person entitled to the conveyance; and also in a case specified in subdivision second of that section, by the executor or administrator of the person who made the contract, or of a person who died seized or possessed of the real property, or interest in real property, or by an heir or devisee of either of those persons, to whom the real property has descended, or was devised. The action may be maintained by the committee of the lunatic or other incompetent person; but in that case the court must appoint a special guardian for the incompetent person, as required by law, where an infant is defendant, and the proceedings are the same as in a like action against an infant. From Id. Am'd by ch. 399 of 1882. § 2347. Judgment; effect thereof. A judgment, directing such a conveyance, shall not be rendered, unless the court, after hearing the parties, is satisfied that the conveyance ought to be made. Upon rendering final judgment to that effect. the court has power to direct the guardian of the infant's property, or the committee of the property of the lunatic or other incompetent person, or a special guardian appointed in the action, to execute any conveyance, or to do any other act, which is necessary, in order to carry the judgment into effect. From 2 R. S. 194, Part 3, ch. 1, tit. 2, part of § 169; 2 R. S. 55, Part 2, ch. 5, tit. a, §§ 19 and 22 (2 Edm. 56). § 2348. Application to dispose of real property. In either of the following cases real property, or a term, estate or other interest in real property, or an inchoate right of dower in real property, belonging to an infant in being or the contingent interest therein of an infant not in being, or a person incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness, may be sold, conveyed, mortgaged, released, or leased, as prescribed in the following sections of this title: 1. Where the personal property, and the income of the real property, of the infant or incompetent person, are, together, insufficient for the payment of his debts, or for the maintenance and necessary education of himself and his family. 2. Where the interest of the infant in being or the contingent interest of an infant not in being, or the interest of an incompetent person require or will be substantially promoted by such disposition, on account of the real property or term, or estate, or other interest in real property being exposed to waste or dilapidation; or being wholly unproductive, or for the purpose of raising funds to preserve or to improve the same, or for other peculiar reasons, or on account of other peculiar circumstances. 3. Where an action might be maintained against the infant or incompetent person, to procure a judgment, directing the conveyance of the real property, or interest in real property, as prescribed in sections twenty-three hundred and forty-five and twenty-three hundred and forty-six of this act. From 2 R. S. 194, 195, Part 3, ch. 1, tit. 2, §§ 167, 170, 175 (2 Edm. 202, 203); 2 R. S. 53-55, Part 2, ch. 5, tit. 2, §§ 11, 16, 19, and 22 (2 Edm. 55-56); ch. 417 of 1864, §§ 1, 5 (6 Edm. 291); ch. 627 of 1869 (7 Edm. 463; ch. 37 of 1870 (7 Edm. 584); ch. 446 of 1874, tit. 1, § 38 and Id., tit. 2, §§ 6, 9, 17 and 23 (9 Edm. 929, 933), as amended by ch. 574 of 1875, § 6 and ch. 267 of 1876, § 2. Am'd by ch. 237 of 1890 and ch. 639 of 1893. § 2349. Id.; by whom. An application, in either of the cases prescribed in the last section, must be made by the petition of the general guardian, or the guardian of the property of the infant; or by the committee of the property of the lunatic or other incompetent person; or by any relative, or other person, in behalf of either. Where the application is in behalf of an infant of the age of fourteen years or upwards, the infant must join therein. Where the application is made to the supreme court, the petition must be presented at a term held within the judicial district, in which the property, or a part thereof, is situated. From Id. § 2350. Contents of petition. The petition must be verified in like manner as a verified pleading in an action in the supreme court. It must set forth the grounds of the application; and in a case specified in subdivisions first and second of the last section but one, other than a case where the application is made for the sale of an undivided interest of the infant or incompetent person in one or more parcels of land in order to avoid an action of partition on the part of his co-tenants, it must also state the particulars and value of the real and personal property, and the amount of the income of the infant or incompetent person; the disposition which has been made of his personal property, and an account of the debts or demands, if any, existing against his estate. In the case above specified where the application is made for the sale of an undivided interest of the infant or incompetent person, the petition must state the particulars and value of the real property in respect to which a sale is desired. From 2 R. S. 53, Part 2, ch. 5, tit. 2, §§ 11 and 16 (2 Edm. 55); ch. 446 of 1874, tit. 2, § 17. Am'd by ch. 311 of 1893. See rule 55 (Sup. Ct.). § 2351. Bond of committee of lunatic, etc. An application to sell, mortgage, or lease real property, or an interest in real property, of a lunatic, idiot, or habitual drunkard, cannot be granted, unless a committee of his property has been appointed. Upon such an application, if it is made by the committee, the court must make an order, directing him to file with the clerk a bond, in such a form, in such an amount, and with such sureties, as it directs, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all moneys received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the trust. If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of opinion, that there is probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the proceedings; who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed, except that application may be made by the committee of the property of the lunatic, idiot, or habitual drunkard in any case where, at the time of the application, the property to which the inchoate right of dower attaches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower. When the application is made by the husband the court may appoint him special guardian, and he must file a bond as herein provided. From Id., § 14; ch. 417 of 1864, § 2 (6 Edm. 291), and ch. 446 of 1874, tit. 2, 7 and 20 (9 Edm. 930, 933). § 2352. Id.; of guardian of infant. Upon an application to sell, mortgage or lease real property or an interest in real property of an infant, the court must appoint a suitable person to be the special guardian of the infant with respect to the proceedings, who must thereupon file with the clerk a bond as prescribed in the last section. Any trust company authorized by the laws of this state to act as general guardian of the estate of an infant without giving security may be appointed such special guardian and in such case the court in the order of appointment may dispense with the giving and filing of any such bond. From 2 R. S. 194, Part 3, ch. 1, tit. 2, §§ 171, 172 (2 Edm. 202). Am'd by ch. 268 of 1893. See § 475 SUR RA |